Anything But Clear

Published: Winter 2011-12

Sexual assault is a crime few people want to talk about. It’s a tough topic — personally invasive and legally loaded, intricately complicated and sensitive. It’s national in scope and particularly problematic on college campuses where young people converge to get an education and to have fun as they launch their adult lives.

Notre Dame has not escaped this societal problem, despite serious and sustained efforts to counter cultural tides. Since 2005, 37 reports of sexual assault have been filed with Notre Dame Security Police (NDSP). Because heightened awareness typically leads to more incidents being reported, officials anticipate an increase in the future. And they note that national underreporting rates suggest that more assaults — which by definition range from unwanted sexual touching to rape — transpired over that period. Alcohol is almost always a key ingredient.

Over time various University initiatives and programs, including expanded education and more restrictive alcohol policies, have been implemented to combat the problem. And in the summer of 2010, the University put the finishing touches on a revamped policy addressing sexual misconduct at Notre Dame. That work, which took two years, transformed a simple statement condemning student-on-student rape and sexual assault that had appeared in du Lac, the student handbook, for a generation.

The effort had drawn together leaders from all corners of campus, from Student Affairs to Student Government to the Office of General Counsel. While Notre Dame had long taken the matter seriously, the new policy provided students with a clearer explanation of what constitutes sexual misconduct and where lines are drawn.

But policy is never enough. The number of sexual misconduct allegations in the 2010-11 academic year was consistent with past averages, but a course of events drew widespread attention at Notre Dame and elsewhere.

No article in any magazine or newspaper can capture the complexity of sexual assault on college campuses, much less solve the problem. Whether an unwelcome touch or non-consensual intercourse, it is a crime to which college-age adults nationally are most vulnerable. American colleges and universities reported some 3,300 forcible sex offenses in 2009.

The issue nationally has been of sufficient concern that in April 2011 the U.S. Education Department released a statement (which came to be known as “the Dear Colleague letter”), strengthening its decade-old sexual-harassment guidelines and reminding colleges and universities they must have transparent, prompt procedures to investigate and resolve complaints of sexual misconduct, protecting the rights of alleged victims. And for the past year the department’s Office for Civil Rights has been working more intensively in higher education to better enforce laws prohibiting sexual harassment.

The result of such efforts at the federal level has been closer scrutiny, new language defining the policies and procedures relative to allegations, investigations and adjudications of sexual assault charges as well as institutional changes within higher education.

Elimination is the goal toward which Notre Dame has steadily built its institutional response over the years, but victim advocates and officials here and nationwide agree that the solution requires a deeper change in the collegiate culture, in which people no longer downplay sexual violence as a victims’ issue but embrace it as a men’s and women’s issue — a community issue.

“If ever there were a place where I think it could be eradicated it ought be here, given who we are and what we say we’re about,” says counselor to the president Ann Firth ’81, ’84J.D., formerly an associate vice president in student affairs, former co-chair of the Committee on Sexual Assault Prevention and the mother of a Notre Dame alumnus and two current students. “Sexual violence in any form is absolutely antithetical to everything this place stands for.”

Finding words

Rape crisis volunteers begin by believing. That’s where it started for Annie Envall ’05, who volunteered as a victim advocate at S-O-S, South Bend’s rape crisis center, as a sophomore. She went through the center’s training program, learning how to take crisis calls and how to comfort victims from the greater South Bend area.

Most of the victims Envall, until recently S-O-S’s full-time project coordinator, would see were anywhere from 18 to 25 years old, and nearly all were women — although men, too, are victims of sexual assaults. A 2007 survey prepared for the National Institute of Justice found that one in five college-age women experience a completed or attempted sexual assault between enrollment and graduation. While most victims eventually share their story with a confidant, the study found that few seek help from crisis centers, health care providers, law enforcement or campus authorities, who believe that as few as one in 20 of these assaults is ever reported.

Five years ago, Envall and Elizabeth Moriarty ’00, ’07M.Div. of Notre Dame’s Gender Relations Center (GRC) co-founded a confidential support group called Out of the Shadows for college women who had experienced “unwanted sexual contact.”

Groups aren’t for everyone, Envall says, but it is important that victims break the silence. “Acknowledging first off that you need help is a big step. And the more we can do to facilitate that the better it’s going to be for those victims.”

Crossing lines

Elizabeth Moriarty figures she wasn’t yet 3 when she first heard the word “rape.” Her parents spoke openly about the bad news coming from El Salvador, where four Maryknoll women had been ambushed, raped and slaughtered by Salvadoran national guardsmen. She carried with her the stories she didn’t understand at the time, but she didn’t personally encounter the effects of a sexual assault until her freshman year when she dropped by to see another Farley Hall resident.

Her friend was disturbed by what had happened to her and was anxiously trying to figure things out. To her knowledge, the friend never reported the incident to anyone in authority. It’s complicated, says Moriarty, who’s now the assistant director of Notre Dame’s GRC. “She knew the guy, someone she was interested in,” she recalls. They never spoke about the incident again. “I think she just tried to pick up the pieces and move on,” Moriarty says.

Hitting the party by yourself, having too much to drink, going somewhere dark and quiet with someone you barely know — these are unhealthy choices, Envall explains, “but your consequence should not be rape.”

At issue is the matter of consent, whether and how it’s given, whether a person is able to give it. One significant change to appear in Notre Dame’s 2010 policy revision was a definition.

“Consent means informed, freely given agreement, communicated by clearly understandable words or actions, to participate in each form of sexual activity,” it begins. “Consent cannot be inferred from silence, passivity, or lack of active resistance.” Past dates or sexual encounters do not constitute consent any more than a kiss implies a wish to remove one’s clothes. Threats, coercion and intimidation eliminate the possibility of consent. The statement concludes, “A person incapacitated by alcohol or drug consumption, or who is unconscious or asleep or otherwise physically impaired, is incapable of giving consent.”

Among students, the neat legal and administrative lines between the heat of the moment and the commission of a crime are often thin, fogged by alcohol and perilously subjective. G. David Moss ’01Ph.D., Notre Dame’s assistant vice president for student services, talks about progressions of intimacy that begin with a look, move to a handshake or a hug and — too quickly among young adults — may jump about 20 big steps to a hookup. What happens next could be something later acceptable, or regrettable, to both. But whenever one person forces past the other’s boundaries, “intimacy” becomes a violation. The power to make a decision is disregarded or taken away.

Daughters and sons

Statistics don’t tell stories but they can provoke a visceral response. Some years ago, Student Government sponsored posters on sexual assault and the response on campus was negative, as if the statistics “had just been made up by a bunch of angry women,” junior Robert Ring notes. Time went by, and a student group called Men Against Violence (MAV) posted the same numbers. “And the response was so different. Like, ‘Wow, these are really impressive and frightening statistics,’” Ring says.

That was before Ring came to Notre Dame, when he was still getting over the shock of a female classmate who’d been date-raped by a mutual friend from their Wisconsin high school. Ring joined MAV as a freshman and got involved as a peer educator for the Gender Relations Center, promoting sexual assault awareness especially among men.

Originally a task group organized by the GRC, Men Against Violence is now a student club. Its signature project is a pledge drive. A poster campaign featuring the baseball team and the boxing club sends the message. “I pledge never to allow someone to be raped, abused or exploited if it could have been prevented,” the poster reads. “Take the pledge. Be a real man.”

That pledge is in line with the work of the GRC, founded in 2004 to promote healthy relationships and educate students about gender and sexuality. Today the GRC staff sees the need for programs they describe as “organic to Notre Dame.” For example, annual campus performances of Loyal Daughters and Sons, a vignette-based meditation on relationships, values, sex and the soul produced each year by new teams of students with fresh stories from campus life have replaced the less relevant Vagina Monologues, and the controversy surrounding that production has evaporated. Moriarty says the challenge is to “talk about what people’s life experience has been and bring that into a conversation with the teaching of the Church.”

“I think not just as a university but as an entire culture we need to help men to find their voice to say, ‘What does it mean to be an integrated and thoughtful, faith-filled male and citizen today?’” says Father Tom Doyle ’89, ’96M.Div., who began his tenure as vice president for student affairs in 2010. “A lot more of our efforts are going to be focused on men.”

Setting boundaries

In 1989, the University published its first policy on sexual harassment committed by students, faculty or staff. The announcement in the Notre Dame Report characterized it as the codification of protocols formulated in the mid-1970s, shortly after the University opened its doors to undergraduate women.

Not long after, Ann Firth co-wrote the grant proposal that established the University’s Office of Alcohol and Drug Education (OADE). Like the GRC, the office’s mission comprises much more than sexual assault awareness, but the two would eventually partner to create educational programs that all first-year students must attend during orientation.

“Almost 100 percent of our sexual assaults involve alcohol use by one or both parties,” says OADE director Chris Nowak. Students come to college with a wide range of drinking experience, she says, complicating their efforts to fit in socially and live their values. When people drink — both men and women — they do things they wouldn’t if their judgments and behaviors were not impaired by alcohol.

Firth, who started her career in student conduct, helped assemble the Committee on Sexual Assault Prevention (CSAP) in 2007. Rewriting policy was a priority, but the committee meets other needs as well. One is to facilitate collaboration among the many units on campus, like health services, First Year of Studies, the counseling center and Campus Ministry that handle prevention and education, support victims and the accused and provide other services. Two CSAP members serve as 24-hour sexual assault resource persons who can advise students of their options after an incident.

The University continues to develop its comprehensive approach to eradicating sexual assault. Starting this year, four employees serve as resource coordinators who can walk through the process with students, be at their side at the hospital or police station, follow up with phone calls or simply be a sounding board. Meanwhile, the GRC has added an expert in sexual assault prevention to its staff.

Some new efforts have emerged from the University’s work with the U.S. Department of Education’s Office for Civil Rights (OCR). Last December, OCR initiated a voluntary review of Notre Dame’s work on sexual assault, scrutinizing policies, procedures, case files and media reports to ensure compliance with the federal law that guarantees men and women equal access to educational programs funded by the federal government.

In April OCR clarified to all colleges that the law requires schools which “reasonably should know about student-on-student harassment that creates a hostile environment . . . to take immediate action to eliminate the harassment, prevent its recurrence and address its effects.” The guidance letter lays out the standards by which schools will be evaluated, either through voluntary reviews as at Notre Dame or during investigations of formal complaints.

At the end of June Notre Dame signed a resolution agreement with OCR that noted the effectiveness of many of the University’s provisions to date. The agreement calls for Notre Dame to consolidate its policy documents to ensure clarity. It requires the University to put into writing the steps taken in investigations of reported incidents and its existing policy in disciplinary hearings of the “preponderance of the evidence” standard used in civil litigation, rather than the more exacting test of “beyond a reasonable doubt” applied in criminal trials.

Other schools, such as Yale and Stanford, are also aligning with the OCR guidelines, but some observers, such as political scientist Peter Berkowitz, say the directives go too far. Writing in The Wall Street Journal, Berkowitz claims the 19-page, April 2011 “Dear Colleague letter” essentially asks colleges and universities “to curtail due process rights of the accused.”

The senior fellow at Stanford’s Hoover Institution also explains that the “preponderance of the evidence” standard “is the lowest standard” — “much less demanding than ‘beyond a reasonable doubt,’ which is used in the criminal justice system, and the intermediate standard of ‘clear and convincing proof.’” To deliver a guilty verdict, he writes, a disciplinary board “need only believe that the accused is more likely than not to have committed the crime.”

Even those observers sympathetic to the plight of victims express caution that guilt not always be presumed and that false allegations are sometimes — if rarely — made.

The OCR-ND agreement, which “does not constitute a finding or admission that the University is not in compliance” with federal law or related regulations outlines other mandatory changes. The school will, for instance, have to make arrangements for complainants who do not want to be in the same room as the accused during a hearing and ensure that complainants have the same right to appeal as the accused.

Asking questions

If Robert Ring could go back to high school, he’d encourage his friend to press charges. He’d listen more and try to help her see that it wasn’t her fault. Back then it was all so difficult. “People feel so isolated,” he says. “And any attempts to help them through it, they can push you away or you can push them away.”

Father Doyle, the vice president for student affairs, has been there when a victim breaks the silence. As a former rector and as a confessor, he’s seen victims question their identity and their future.

What happened to me? Am I responsible?

“There is guilt, there is shame, there is misunderstanding,” Doyle says. “Just telling the first person is one of the most heroic acts that you could ever witness. It’s a humbling thing to be in the presence of somebody when they share something that is that personal.

“As somebody who has walked with victims, the next question is, ‘How do we help them from here?’”

Notre Dame takes a victim-centered approach to its response, which Doyle describes as putting choices and control of their lives back into victims’ hands.

Students don’t often open up the morning after, or even within the 96-hour window when a trained nurse examiner might still collect evidence from a rape victim. As a category, assaults on college campuses are distinguished from rapes in other contexts in at least two statistically significant ways that help explain the high rates of under-reporting — intoxication with alcohol and prior acquaintance with the suspect. Studies have identified both as factors that diminish the likelihood that a victim will come forward. They may need weeks or months before they speak of the incident with people they trust.

Students need to know that their story may remain confidential only with some University employees. OCR’s guidelines stipulate that any employee not designated as a potential confidant must report what they know whether or not the student wants to pursue an investigation. While some victims may be ready, others may feel their control slipping away again just as they’re trying to recover it.

The argument for mandated reporting views campus sexual assault as a public health threat. Proponents of this ascendant view say that a relatively small number of perpetrators, who probably do not see themselves as rapists, are likely to do it again and are responsible for most incidents, exploiting personal familiarity and the relaxed circumstances of parties or bars to find the most intoxicated — and therefore most vulnerable — prey.

Seeking answers

Phil Johnson ’81, ’99MBA, director of the Notre Dame Security Police, says one thing investigators try to do with an initial report is gauge the threat to the community. Context, location, whether the alleged assailant is known to law enforcement are all important. Victims may convey this information at the hospital, when a victim identifies as a student — or indicates the perpetrator is a student — and an officer is dispatched to the ER. Depending on whether the incident took place on or off campus, the investigator will come from NDSP or another jurisdiction.

NDSP employs three officers who investigate sexual assaults and other cases: a former city detective who has overseen or conducted more than 200 sexual assault investigations; a former FBI agent; and an officer who has spent the last six years of her 24 on the campus force investigating assaults and other crimes.

“We have the challenge of finding facts,” Johnson explains. That means investigating the scene — if there still is one — following up with a victim who may be in distress or choose not to cooperate, trying to understand what happened, exercising due diligence before contacting any witness or suspect, and recognizing that there are at least two sides to a story. “But we’re very conscious of the dynamics of how difficult this could be for victims,” he says.

Some rape victims choose not to have the hospital call the police. Dave Chapman, NDSP’s assistant director, says victims should know that they may file a Jane Doe report in which caregivers collect evidence, assign a case number and send the anonymous kit to the county police, who keep it for one year. Regardless of whether they had evidence taken or how much time may have passed, victims should feel encouraged to make a report anytime, Chapman says.

“We want them to know that we care about them, that we’re going to work tirelessly on their case,” Johnson adds. “It may take some time, but we’re going to work as quickly as we can.”

The Office of Civil Rights now requires schools to investigate any reported incident and share their findings with regulators. A student may choose recourse through the disciplinary process, the law, neither or both. But the difficulty of holding assailants accountable is an issue throughout the criminal justice system and higher education.

Experts speaking last summer at a national workshop for student conduct officers identified several factors that complicate narratives brought before hearing boards, including intoxication, consent, credibility and the significance of the consequences. Notre Dame has adjudicated about four cases per year over the past five years. Outcomes have ranged from a finding of no responsibility to dismissal. On the law enforcement side, police have made four arrests since 2005, but you’d have to go back a few more years to find a criminal conviction.

Even when an assailant is held accountable, Doyle observes, real justice is elusive. Victims “get to the end of it and say, ‘But I don’t feel whole. I don’t feel like it’s resolved.’”

As a priest he knows people can heal, but some do not. “I’ve seen glorious, unbelievable, miraculous, grace-filled, courageous healings, and I’ve seen people carry this heavy cross through life as a daily burden,” he says.

Getting upstream

It is a great — and for some, bitter — irony that in our sex-saturated culture we don’t really like to talk about sex. Generation gaps and mores are two factors in play on college campuses, especially at religiously affiliated schools like Notre Dame. Peers talk about sex, says Mandy Lewis ’10, a sociology major who did her senior thesis on sexual assault at Notre Dame, “but not always in positive ways.”

Lewis, now a victims’ advocate, knows what she’d say if she could go back and speak to students: “Men and women need to not be afraid to communicate with each other. It’s not unsexy to actually talk to your partner instead of just initiating. It’s okay to go to a party, hang out and go home separately. . . . We need to stop pressuring each other to do things we don’t want to do. We need to stop pressuring our friends to make these conquests, to have these conversations where we treat men and women as objects. . . . And we really need to not be afraid to go to our rectors and ask questions.”

Doyle, who lives in an apartment in Pasquerilla East, a women’s residence hall, says many students come to Notre Dame with a strong sense of who they are and have little trouble living with personal choices that limit physical expressions of love. But questions about dating, relationships and how to approach romantic interests are common, he says.

Still, some students perceive the atmosphere as less welcoming because of Church teaching, even though Catholics believe that sexuality is one of the most sacred parts of being human. “We say that the appropriate place for the most intimate physical acts is reserved for the context of permanent commitment in marriage,” Doyle notes. The fact is engraved in University policy, which forbids consensual sex outside of marriage. But, he adds, “Just because an institution has a point of view about the appropriate expression of sexuality doesn’t mean it’s not willing to engage in all kinds of dialogue about that.”

As co-chairs of the Committee on Sexual Assault Prevention, Moss of student services and Sister Susan Dunn, O.P., are fostering a sustained plan for a campus conversation about relationships. Doyle calls it “getting upstream” of sexual violence. “I’m convinced that if we can help young people engage in healthier friendships with one another we will address the most grotesque manifestation of abuse in relationships,” he says.

It takes courage to speak seriously about what it means to be made in God’s image and likeness at Reckers at midnight. But it also takes courage to intervene when you see a friend in trouble. NDSP offers self-defense classes each month and at least 150 women complete the course every year. Now more colleges, including Notre Dame, are introducing active bystander training.

But standing up — rather than standing by — can’t be left to women alone. Robert Ring knows. He can imagine a Notre Dame free of sexual assault. It’s a matter of not tolerating members of the family who use alcohol to take advantage of others. But it’s not easy. “I mean, it takes a lot of courage to say — not only to your friends, but maybe to someone you don’t even know — ‘Hey, is she okay with that?’”